Heard both sides.
2.Following the foot steps of the associations of Advocates in litigating the elections to their associations before the Courts, it is the turn of the Advocate Clerks to come up with such pleas and that too for the second time. Seeing the array of counsels appearing in this case will show the keenness on an unwelcome litigation.
3.This original application is filed for a temporary injunction, restraining the respondents 2 to 21 from in any way functioning as the office bearers of the first respondent Association, pending suit. A.No.2675 of 2009 is for appointment of a fit person/election officer to conduct the election to the first respondent Association for the year 2009-2010. The first respondent association is registered under the Societies Registration Act, 1860 with Registration No.89 of 1968 and deemed to be Society under the Tamil Nadu Societies Registration Act, 1975 by virtue of
Section 4(2) of the Act.
4.The two applicants, who are members of the first respondent Association, filed the suit for a declaration that the defendants 2 to 21 cannot hold the office for more than one year and for consequential permanent injunction and also to appoint a fit person/election officer to conduct election for the association for the year 2009-2010.
5.When this matter came up on 1.7.2009, this Court directed both parties to appear and work for an amicable solution and the matter was directed to be posted on 6.7.2009. Subsequently, this Court also called all the parties to the dispute along with their counsels in the Chamber for finding out an amicable solution. Thereafter, this Court directed all the counsels appearing in the matter to meet in a common place, discuss the issue and to come up with a consensus. Accordingly, the parties to the suit discussed the matter on 4.7.2009 in the presence of one Senior Counsel. After the said meeting, three memos were filed by the 8th defendant, the plaintiffs as well as on behalf of defendants 7,12 and 13.
6.The sum and substance of the memos is that all the parties are willing for conducting an election for the association, which may be ordered by this court. However, the said election should be conducted on the basis of the existing certified bye-laws. Therefore, this court directed the counsel for the plaintiffs to serve notices on all the parties appearing. Accordingly, notice was served and proof was also filed before this Court.
7.Heard Mr.T.R.Rajagopal, learned Senior Counsel, Mrs.Hema Sampath, learned Senior Counsel and the battery of counsels appearing for various defendants.
8.It is seen from the records that even during the last year, there was a dispute among the members, which was brought up as a suit before this Court in C.S.No.361 of 2006. This Court, by an order, dated 18.4.2007, disposed of the suit. This court gave directions to conduct elections for the association. Two electoral officers were appointed. Accordingly, elections were conducted and declaration of the results were made on 28.7.2007.
9.It is seen that there were difference of opinion with reference to the duration of period of the elected office bearers. There was also no consensus with regard to continuance office for two years, since amendments made to the bye-law to that effect though were sent for registration by the Registrar, but yet to be registered. However, the other group, which includes the plaintiffs, contended that unless amendments are registered, the same shall not come into force. It is also suggested by some that by conducting election for the remaining period of 2009-2010 will be a wasteful exercise as the elected office bearers can continue only for about 8 months from August, 2009 to March, 2010.
10.The law on this subject is very clear. The Supreme Court vide its decision in T.P. Daver v. Lodge Victoria reported in AIR 1963 SC 1144, in paragraph 9 of its judgment, has held as follows:
"9.The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra." (Emphasis added)
11.Following the said judgment, this Court in S.Krishnaswamy and others vs. South India Film Chamber of Commerce and others reported in AIR 1969 MADRAS 42 set out parameters for the court's interference in the following lines, which is found at para 14:-
"14....In the case of clubs and Societies registered under the Societies Registration Act, the general principles governing the right of suit of an individual share holder or a member of the Company would apply and ordinarily the Court will not interfere with the internal management of the Society at the instance of one or some only of the members of the Society subject to well recognised exceptions (1)where the impugned act is ultra vires of the Society, (2)the act complained of constitutes fraud or (3) whether the impugned action is illegal...."
(Emphasis added)
12.With reference to the effect of bye-laws adopted by the Association coming into force in terms of the Tamil Nadu Societies Registration Act, 1975, a Division Bench of this court (Presided by P.K.Misra, J.) in its judgment in The Music Academy, represented by its Executive Trustee, Chennai Vs. Inspector General of Registration, Santhome High Road, Chennai and others reported in (2005) 4 MLJ 608, in paragraph 25 had observed as follows:
"25. ... As per Sec.12(3) of the State Act, until the amendment of the bye-laws is registered by the Registrar, such bye-laws would not be effective. Moreover, no bye-laws would be effective if such bye-laws are against the provisions contained in the Act. In above view of the matter, the provisions contained in the bye-laws of 1989 to the effect that in order to contest, a person should have been a member for 3 years was ineffective inasmuch as such bye-laws had not been registered at the time when the election was held in June, 2001."
13.The same view was reiterated by a subsequent judgment of the Division Bench of this Court vide its decision in R.Parthasarathy Vs. State of Tamil Nadu rep. by the Secretary to Government and others reported in (2008) 3 MLJ 401. The following passage found in paragraph 29 of the said judgment may be usefully extracted below:
"29. ... If any such resolution is passed by the required majority of members in accordance with the bye-laws, such resolutions containing the amended bye-laws would be obviously placed before the Registrar of Societies who can at that stage examine whether any of the bye-law is contrary to the provisions of the statute, otherwise the Registrar is required to register such amended bye-laws..."
(Emphasis added)
14.Since all the parties to the suit have agreed for conducting the election in the presence of a court appointed Commissioner, the only question is what should be the basis or bye-laws under which such election can be held?
15.In the light of the above legal precedents, unless and until there is valid amendment to the bye-law, (though sent for registration but yet to be approved by the Registrar), the elections for the current year will have to be done on the existing bye-law. Bye-law No.10 reads as follows:
"10.The management of the Association shall vest in a Council consisting of :
(a)One President.
(b)One Vice-President.
(c)One Secretary.
(d)One Treasurer.
(e)Nine Ordinary Members."
Therefore, the election can be held only for these office bearership.
16.Though it is claimed that a large number of members must be allowed to pay subscription, this Court is not inclined for a fresh renewal of membership at this stage, as election to the Association was long over due. Further bye-law No.8 disqualifies persons, who have not paid subscription for more than three months consecutively.
17.Therefore, in the light of the existing bye-law and the legal precedents summarized above, this court directs that the election for the first respondent Association shall be held by a Advocate Commissioner appointed by this Court.
18.Accordingly, Mr.Balan Haridoss, Advocate, No.J-51, Anna Nagar, Chennai-40, is hereby appointed as an Advocate Commissioner to conduct the Election. This Court records its appreciation that he had agreed to be the Advocate Commissioner without any remuneration being paid to his services.
19.He shall conduct the election as per the following schedule:
Election Schedule
1.Publication of valid voters list : 19.07.2009
2.Nominations to be filed : 20.07.2009
3.Withdrawal of nominations and Valid list of nomination after scrutiny : 21.07.2009
4.Voting (if any) in the Election : 28.07.2009 (10.00 AM to 5.00 PM)
5.Counting and declaration of Results : 29.07.2009
20.The report of the said election shall be submitted to this Court by the Advocate Commissioner on 30.7.2009. The existing officer bearers shall continue till the declaration of results approved by this Court. All the applications are disposed of accordingly.
21.Both sides are directed to give full cooperation to the Advocate Commissioner. The expenditure for conducting election shall be borne by the first respondent Association. The Advocate Commissioner is at liberty to get the assistance of any other Advocates to assist him in his work.
vvk
1.Issue order copy today (13.07.2009)
2.Issue the warrant to the Advocate Commissioner today